Tribal Court Supports Slaves' Descendants Getting Citizenship

Two descendants of those enslaved by the Muscogee (Creek) Nation will get another chance at applying for citizenship, a tribal district court judge ruled, saying substantial evidence supports their claims that a 19th century treaty guarantees them the same rights and privileges as other Native citizens.

The ruling by Muscogee (Creek) Nation District Court Judge Denette Mouser on Wednesday reversed a 2020 administrative decision by the tribe's citizenship board to deny requests by Rhonda Grayson and Jeffrey Kennedy and remanded the case for further review.

"The board was unable (neither through direct examination of its own witness nor cross-examination of plaintiff's witnesses) to provide any evidence whatsoever of the abrogation or inapplicability of the Treaty of 1866 and in fact provided confirmation of its own regarding the effect of the conflict between the nation's Constitution and the treaty," Judge Mouser wrote in the order.

Should the citizenship board approve their requests, the decision could have broader implications for other descendants seeking the same status.

Grayson and Kennedy, both board members of the Muscogee Creek Indian Freedmen Band, had argued that the Treaty of 1866 between the federal government and Muscogee (Creek) Nation guarantees them and their fellow descendants citizenship within the Oklahoma tribe.

"It's with profound emotion and deep-rooted ancestral pride that we announce the triumphant outcome in our long-fought case for Rhonda Grayson and Jeff Kennedy, Black Creek freedmen, who faced an unjust denial of their rights to tribal citizenship," their attorney Damario Solomon-Simmons said in a statement. "Today's decision by the highly decorated Muscogee (Creek) Nation District Court Denise Mouser affirms that Article II of the Creak Treaty of 1866 is the 'supreme law of the land' and guarantees that Creek freedmen and their descendants, regardless of their 'blood' status,' 'shall have and enjoy all the rights and privileges of native citizens' of the MCN. Creek Treaty of 1866, and MCN does not have the right to discriminate against Creeks of African descent."

The Treaty of 1866 gave certain rights and privileges to people who were enslaved by the Cherokee, Choctaw, Chickasaw, Muscogee (Creek) and Seminole nations, according to the U.S. Department of the Interior. The nations, often referred to in federal statutes as the Five Civilized Tribes, were required to abolish slavery on their lands and give full rights to those they had enslaved and to their descendants.

Solomon-Simmons told Law360 in December that he estimates more than 100,000 people would be eligible for Creek citizenship if his clients prevail. The tribe is the fourth-largest in the country, with 97,000 citizens.

Muscogee (Creek) Nation Attorney General Geri Wisner said her office intends to immediately appeal Judge Mouser's ruling to the tribe's Supreme Court.

"We respect the authority of our court, but strongly disagree with Judge Mouser's deeply flawed reasoning in this matter," Wisner said in a statement to Law360 on Thursday, adding that the Muscogee (Creek) Nation's Constitution, "makes no provisions for citizenship for non-Creek individuals."

"We look forward to addressing this matter before our nation's highest court," she said.

Grayson and Kennedy were part of a group of descendants of enslaved people who sued the Muscogee Nation and the federal government in 2018 in an effort to gain tribal citizenship. They accused the tribe of "perpetuat[ing] race-based discrimination and the badges of slavery by using the freedmen descendants' African ancestry to deny them the rights and benefits of ... citizenship."

A federal judge dismissed the case in 2019 since Grayson and Kennedy never actually applied for Creek citizenship at the time.

The two subsequently applied for, and were denied, citizenship later that year, according to court filings. After their administrative appeals were denied, they filed suit in tribal court, arguing in a motion for summary judgment that as descendants of those enrolled in the Dawes Commission as Muscogee (Creek) freedmen, they are entitled to tribal citizenship rights under Article II of the Treaty of 1866.

Article II of the treaty stipulates that persons of African descent "shall have and enjoy all the rights of native citizens." The Dawes Commission, established in 1893 by the federal government to negotiate separate agreements with the five tribes, was tasked with equally dividing land into plots for each of their individual members.

"The plain meaning of this treaty language guarantees eligible freedmen and their descendants all the rights and privileges of native citizens," the plaintiffs said in the 2020 motion. "Thus, if a native Mvskoke 'by blood' is permitted to vote in a tribal election, a Creek freedman would enjoy the same right."

The Muscogee (Creek) Nation had denied Grayson and Kennedy's requests for citizenship based on Article III of its own citizenship clause. The clause states that those with lineal ancestors, whose names appear on the final "blood" rolls as approved by the Tribes Act of 1906, are tribal members, according to court records.

The Tribes Act of 1906 says no one can be enrolled as a citizen of the Five Civilized Tribes unless there "shall be conclusive evidence as to the fact of such application." The Cherokee Nation is the only one of the five tribes that has given full citizenship rights to descendants of tribe-owned slaves.

The "blood" rolls, known as the Dawes Rolls, are a federal record, compiled between 1898 and 1814, of members of the Cherokee, Creek, Choctaw, Chickasaw and Seminole nations. The five tribes use the Dawes Rolls today as a basis for determining tribal membership, usually requiring applicants to show proof of descent from an individual already listed on the rolls.

Members of the Muscogee (Creek) Nation were divided into two categories on the rolls. Those with Creek blood were listed as citizens, and the names of enslaved individuals or those of multiracial heritage were placed on the rolls as freedmen.

Grayson and Kennedy are represented by Damario Solomon-Simmons of Solomon Simmons Law.

The Citizenship Board of the Muscogee (Creek) Nation is represented by Geri Wisner of the tribe's Office of the Attorney General.

The case is Rhonda Grayson and Jeffrey Kennedy v. Citizenship Board of the Muscogee (Creek) Nation of Oklahoma, case number CV-2020-0034, in the Muscogee (Creek) Nation District Court.